Despite these facts, the OCA said "that forfeiture of the Property would be manifestly harsh and inequitable in the circumstances of this case and, hence, that it is clearly not in the interests of justice." (Para. 72.)
" In Darlington, at para. 97, this court recognized that it is not possible to list all the factors that could properly be considered by the court in evaluating the interests of justice in a particular case. However, Doherty J.A. identified the following factors as relevant:
(1) the closeness of the connection between the property and the illegal activity (para. 97);
(2) the reasonableness of the conduct of the party whose property is the subject of the forfeiture application as it relates to the unlawful activity (paras. 98 and 99);
(3) the interplay between the purposes of the CRA and the exercise of the discretion to relieve against forfeiture (paras. 98 and 107); and
(4) the value of the property owner’s interest in the property compared to the value of the property that is tainted by the unlawful activity (paras. 98 and 104).
" The first three factors listed above are pertinent in this case. ...
" First, ... There is no doubt that there was a connection between the Property and Fred’s drug activities in 2006, when a marijuana grow operation was found at the premises. However, after that discovery, Fred did not reside at the Property for three and one-half years. Indeed, when the six-year period between Fred’s arrest in March 2006 and the date of the forfeiture application is viewed as a whole, Fred did not live at the Property for almost four years and ten months. And, when Fred was released from jail in 2011, Roger did not permit him to resume living at the Property. Instead, he was required to reside with his father.
" Further, there is no suggestion of drug activity at the Property after Fred returned to live there in September 2009, until the summer of 2010. Even then, Fred was arrested at the nearby crack house, not at the Property. ...
" ... On the evidence before the application judge, it appears that Fred was living at the Property while engaging in drug activities, rather than using the Property to carry on those activities.
" Finally, throughout his occupancy of the Property, Fred paid rent, deducted at source by his employer, Parker Brothers, from his salary. This is not a case where rental payments were generated from the profits of drug-related activities. Nor is this a case where the property owner acquired or maintained the Property utilizing funds from unlawful activities. ... there was no evidence at the forfeiture hearing that Roger was complicit in, or profited from, his son’s unlawful activities.
" The second important factor ...  ..., an order requiring forfeiture of the Property would not promote the deterrence and crime prevention goals of the CRA.
" ... the third factor ... – the reasonableness of the property owner’s conduct in relation to unlawful activity at the property.
" ... elementary justice requires that care be taken on a CRA forfeiture application to distinguish between a property owner “who had no involvement in the criminal activity, was unaware of that activity, had acted reasonably throughout and did not profit from the activity” and a property owner “who was involved in and directly profited from the unlawful activity”.
" ...the Property was acquired for a legitimate purpose, that Roger was the sole and exclusive beneficiary of it, and that Roger rented the Property to his son – deducting the rental payments from his son’s salary – for legitimate reasons connected with his son’s lawful employment by Parker Brothers. There was simply no evidence that Roger sought to facilitate, encourage or sanction Fred’s unlawful activities. To the contrary, the evidence established that Roger furnished the Property to Fred to provide him, as well as his grandchild and his son’s girlfriend, with a place to live.
" Importantly, there was also no evidence that Roger turned a blind eye to his son’s drug problems. ... The record reveals that Roger attempted, for almost 25 years, to assist his son in overcoming his serious and long-standing addiction to drugs. ... Roger was not a compliant or uninvolved father and property owner."
See Ontario (Attorney General) v. 20 Strike Avenue, (2014 ONCA Cronk) The OCA later also allowed the father $40,000 for his legal costs: 2014 ONCA 491